Citation Nr: 0527633
Decision Date: 10/13/05 Archive Date: 10/25/05
DOCKET NO. 03-36 499 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to a compensable rating for a fractured right
thumb, right finger, and traumatic amputation to the distal
tip of the right middle finger.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The veteran served on active duty from December 1971 to June
2002.
This matter is before the Board of Veterans' Appeals (Board)
from a July 2002 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which established service connection for a fractured
right thumb, right finger, and traumatic amputation to the
distal tip of the right middle finger, evaluated as zero
percent disabling (noncompensable). The RO in Winston-Salem,
North Carolina, currently has jurisdiction over the claims
folder.
The veteran provided testimony at a videoconference hearing
before the undersigned Veterans Law Judge in July 2005, a
transcript of which is of record.
As an additional matter, the Board notes that the veteran
testified at his June 2005 hearing that his service-connected
scar of the right ring finger was tender and painful, as well
as raised in nature. The Board is of the opinion that this
testimony raises the issue of entitlement to an increased
rating for this service-connected scar. Accordingly, this
issue is REFERRED to the RO for appropriate action.
FINDINGS OF FACT
1. All reasonable development and notification necessary for
the equitable disposition of the instant case has been
completed.
2. The veteran's right ring finger is manifested by pain,
decreased strength, and limitation of motion. However, it is
not manifested by ankylosis.
3. The medical evidence reflects that neither the right
thumb nor middle finger is manifest by ankylosis and/or
limitation of motion.
4. The competent medical evidence reflects that the right
middle finger amputation was above the proximal
interphalangeal joint, and did not result in more than one-
half of the bone being lost.
CONCLUSION OF LAW
The criteria for a compensable evaluation for the service-
connected fractured right thumb, right finger, and traumatic
amputation to the distal tip of the right middle finger, are
not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.31, 4.40, 4.45, 4.59,
4.71a (Diagnostic Codes 5154, 5218, 5222, 5224, 5226-5230)
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes at the outset that VA has a duty to assist a
claimant in developing the facts pertinent to his or her
claim, and to notify him or her of the evidence necessary to
complete an application for benefits. The Veterans Claims
Assistance Act of 2000 (VCAA), which became law on November
9, 2000, redefined the obligations of VA with respect to the
duty to assist and included an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. First, VA has a duty
to notify the appellant of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A. §§
5102, 5103; 38 C.F.R. § 3.159(b). Information means non-
evidentiary facts, such as the claimant's address and Social
Security number or the name and address of a medical care
provider who may have evidence pertinent to the claim. See
66 Fed. Reg. 45,620, 45,630 (August 29, 2001); 38 C.F.R. §
3.159(a)(5). Second, VA has a duty to assist the appellant
in obtaining evidence necessary to substantiate a claim. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
In Quartuccio v. Principi, 16 Vet. App. 183 (2002), the
United States Court of Appeals for Veterans Claims (Court)
emphasized that adequate notice requires a claimant to be
informed of what he or she must show to prevail in a claim,
what information and evidence he or she is responsible for,
and what evidence VA must secure. Thereafter, in Pelegrini
v. Principi, 18 Vet. App. 112 (2004), the Court held, in
part, that a VCAA notice, as required by 38 U.S.C. § 5103(a),
must be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits.
More recently, however, the Court held in Mayfield v.
Nicholson, 19 Vet. App. 103 (2005) that error regarding the
timing of notice does not have the natural effect of
producing prejudice and, therefore, prejudice must be pled as
to it. Further, the Court held that VA can demonstrate that
a notice defect is not prejudicial if it can be demonstrated:
(1) that any defect in notice was cured by actual knowledge
on the part of the appellant that certain evidence (i.e., the
missing information or evidence needed to substantiate the
claim) was required and that the appellant should have
provided it; (2) that a reasonable person could be expected
to understand from the notice provided what was needed; or
(3) that a benefit could not possibly have been awarded as a
matter of law.
As will be discussed below, the VCAA provisions have been
considered and complied with. There is no indication that
there is additional evidence to obtain, there is no
additional notice that should be provided, and there has been
a complete review of all the evidence without prejudice to
the appellant. As such, there is no indication that there is
any prejudice to the appellant by the order of the events in
this case. See Mayfield, supra; see also Bernard v. Brown, 4
Vet. App. 384 (1993). Any error in the sequence of events is
not shown to have any effect on the case or to cause injury
to the claimant. Consequently, the Board concludes that any
such error is harmless and does not prohibit consideration of
this matter on the merits. See ATD Corp. v. Lydall, Inc.,
159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi
Queen, 753 F.2d 1349, 1352 (5th Cir. 1985).
Here, the RO sent correspondence to the veteran in January
2004 and February 2005 which informed him of what was needed
to substantiate a claim for increased rating, what
information and evidence he must submit, what information and
evidence will be obtained by VA, and the need for the veteran
to advise VA of or to submit any evidence in his possession
that was relevant to the case. As such, this correspondence
fully complied with the notice requirements of 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's
holding in Quartuccio, supra.
The Board further notes that the veteran has been provided
with a copy of the appealed rating decision, the October 2003
Statement of the Case (SOC), and the July 2004 Supplemental
Statement of the Case (SSOC), which provided him with notice
of the law and governing regulations regarding his case, as
well as the reasons for the determinations made with respect
to his claims. In pertinent part, the SOC included a summary
of the relevant VCAA regulatory provisions of 38 C.F.R.
§ 3.159. Therefore, the Board finds that the veteran was
notified and aware of the evidence needed to substantiate
this claim and the avenues through which he might obtain such
evidence, and of the allocation of responsibilities between
himself and VA in obtaining such evidence. Accordingly,
there is no further duty to notify.
Regarding the duty to assist, the Board notes that the
veteran and his representative have had the opportunity to
present evidence and argument in support of his claim, to
include at July 2005 hearing. However, it does not appear
that the veteran has identified the existence of any relevant
evidence that has not been obtained or requested by the RO.
Further, he has been accorded several examinations in
conjunction with this case. Consequently, the Board
concludes that the duty to assist has been satisfied.
Based on the foregoing, the Board finds that, in the
circumstances of this case, any additional development or
notification would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the claimant); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the claimant are to be avoided);
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there
is extensive factual development in a case, reflected both in
the record on appeal and the Board's decision, which
indicates no reasonable possibility that any further
assistance would aid the appellant in substantiating his
claim, this Court has concluded that the VCAA does not
apply). Thus, the Board finds that the duty to assist and
duty to notify provisions of the VCAA have been fulfilled, to
include the revised regulatory provisions of 38 C.F.R. §
3.159. No additional assistance or notification to the
appellant is required based on the facts of the instant case.
Background. The veteran essentially contends that his
service-connected right thumb, ring, and middle finger
disability(ies) is more disabling than contemplated by the
current noncompensable evaluation.
The veteran's service medical records reflect that he had
traumatic amputation to the distal tip of the right middle
finger in July 1978, that he fractured his right ring finger
in March 1989, and that he fractured his right thumb in
January 1994. Service connection was established for
residuals of these injuries by the July 2002 rating decision,
which also granted service connection for a scar on the right
ring finger.
The veteran's service medical records also reflect that he is
left-handed.
In July 2002, the veteran underwent a VA medical examination
in conjunction with his original service connection claims.
Among other things, he reported that he fractured his right
thumb distal interphalangeal (DIP) joint in 1994, but that he
had no pain at the present time with range of motion. He
also reported a history of an open reduction and internal
fixation of the right hand 4th digit, that he was unable to
grip with his fingers, had difficulty pushing and pulling,
and that he had pain on range of motion which he described as
a 3 on a 1 to 10 scale. Moreover, he had a history of a
traumatic avulsion of the right hand 3rd digit DIP, and that
it was slightly shorter on his right hand due to the
avulsion.
On examination, the veteran was found to be well-nourished,
well-developed, and in no acute distress. His right hand
showed no evidence of erythema, edema, ecchymosis, or
deformity of the right thumb. He was able to test the thumb
and fingers without difficulty. Further, he was able to
pull, push, and grasp without problem. His right 4th digit
was found to have a 1.5 linear scar measured by another 1.5
linear scar that came into a V-formation on the palmar aspect
of the 4th digit. It was found to be nontender, with no
deformity, but mild edema was noted. Moreover, he was unable
to grasp with the finger, he could not flex the finger, and
could not touch the palmar crease. He was found to have a 3
to 5 grip of that hand. In addition, there was deformity due
to the 3rd digit distal tip, which was 1.5 cm. shorter than
the left 3rd digit where there had been a traumatic
amputation in the past. There was no scarring or tenderness
to this area. Diagnoses following examination included
history of right thumb DIP joint fracture, with residual;
status-post open reduction and internal fixation right hand
4th digit, with residual; and right hand 3rd digit traumatic
avulsion to the distal tip with residual.
In June 2004, the veteran underwent a new VA medical
examination of his hand, fingers, and thumb, at which the
examiner noted that the claims folder had been reviewed. The
examiner noted that the veteran's right hand was not his
dominant hand, that it was injured on 3 separate occasions
during active service, and provided a summary of the
circumstances thereof.
On examination, he was found to have a deformity of the nail
of the middle finger ulnar aspect, which was associated with
a soft tissue partial amputation. The finger itself appeared
to be alright, but the nail was deformed. He also had a
3/4th inch laceration in the tuft of the middle finger.
Further, he could not flex the DIP joint of the ring finger
and lacked 11/2 inch placement in the medium transverse fold of
the thumb. In addition, he could not hyperextend the ring
finger of the right hand. He was able to grasp things with
the thumb, index and middle fingers in the right hand, but
there was definite decreased strength in the ring finger and
lack of dexterity in the hand as a unit. Moreover, he had
full range of motion with all fingers, except the ring
finger. He lacked 10 degrees full extension, he could not
hyperextend it, and could not flex the DIP joint and distal
phalanx at all. X-rays of the right hand noted old trauma of
the distal tuft of the 3rd finger, otherwise negative.
Based on the foregoing, the examiner diagnosed fracture right
thumb with minimal residuals; partial amputation middle
finger right hand with deformed fingernail; and injury with
ruptured distal tendon slip right ring finger in residual,
loss of range of motion.
At the June 2005 hearing, the veteran described the current
symptomatology of his service-connected finger disabilities
of the right hand. He testified that the motion of his ring
finger is somewhat limited, but that the strength was almost
nonexistent, that it was almost impossible to pick up
anything that had any weight or any gripping because of the
injury to both digits. Further, he indicated that his left
hand was listed as being dominant because that is the one
which he used to write, and that he actually did most of his
activities, including sports, with his right hand. Regarding
the thumb, he felt that he had lost mobility, but was not
sure how much was due to the thumb as compared to the other
fingers. He indicated that the middle finger was tender and
painful, particularly at the tip where the amputation
occurred. He emphasized that it was the finger itself which
was painful, and that the residual scar of the middle finger
was not painful. When asked, he testified that the hand was
always weak, that he could not touch his thumb to the palm of
his hand, that he did not receive any current treatment for
his right hand condition, that he did not wear a brace or
split to help when doing activities, and that his hand would
get tired when he was doing normal everyday activities.
Legal Criteria. Disabilities must be reviewed in relation to
their history. 38 C.F.R. § 4.1. Other applicable, general
policy considerations are: interpreting reports of
examination in light of the whole recorded history,
reconciling the various reports into a consistent picture so
that the current rating may accurately reflect the elements
of disability, 38 C.F.R. § 4.2; resolving any reasonable
doubt regarding the degree of disability in favor of the
claimant, 38 C.F.R. § 4.3; where there is a question as to
which of two evaluations apply, assigning a higher of the two
where the disability picture more nearly approximates the
criteria for the next higher rating, 38 C.F.R. § 4.7; and,
evaluating functional impairment on the basis of lack of
usefulness, and the effects of the disabilities upon the
person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath
v. Derwinski, 1 Vet. App. 589 (1991).
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. The functional loss may be due to absence of part
or all of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38
C.F.R. § 4.40 (2003); see also 38 C.F.R. § 4.45 (2003).
In general, the degree of impairment resulting from a
disability is a factual determination and generally the
Board's primary focus in such cases is upon the current
severity of the disability. Francisco v. Brown, 7 Vet.
App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402
(1994). However, in Fenderson v. West, 12 Vet. App. 119
(1999), it was held that the rule from Francisco does not
apply where the appellant has expressed dissatisfaction with
the assignment of an initial rating following an initial
award of service connection for that disability. Rather, at
the time of an initial rating, separate ratings can be
assigned for separate periods of time based on the facts
found - a practice known as "staged" ratings.
With regard to the veteran's request for an increased
schedular evaluation, the Board will only consider the
factors as enumerated in the applicable rating criteria. See
Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v.
Derwinski, 2 Vet. App. 625, 628 (1992).
The record reflects that the RO has considered various
Diagnostic Codes in evaluating the veteran's service-
connected finger disabilities of the right hand. In the
instant case, although the veteran intimated otherwise at his
June 2005 hearing, the medical evidence reflects that his
left hand is major (dominant) hand. Thus, his right hand is
the minor hand.
According to criteria in effect prior to August 26, 2002,
finger injury residuals were evaluated on the basis of
whether such residuals produced either favorable or
unfavorable ankylosis, i.e., immobility of a joint. See
Lewis v. Derwinski, 3 Vet. App. 259 (1992). By contrast, the
criteria that became effective from
August 26, 2002 do provide for evaluating finger injury
residuals on the basis of limitation of motion. All of these
Codes were considered by the RO, as documented by the October
2003 SOC.
Amputation of the long finger, whether the major or minor
hand, warrants a 10 percent rating if it is without
metacarpal resection, at the proximal interphalangeal (PIP)
joint, or proximal thereto. A higher rating of 20 percent is
warranted for amputation of the long finger where there is
metacarpal resection (more than one-half the bone lost).
38 C.F.R. § 4,71a, Diagnostic Code 5154.
Diagnostic Code 5222 provides that favorable ankylosis of the
thumb and any two fingers of the minor hand warrants a 30
percent rating.
Diagnostic Code 5223 provides that favorable ankylosis of the
thumb and any finger of the minor hand warrants a 20 percent
rating, while favorable ankylosis of the long and ring finger
warrants a 10 percent rating for both the major and minor
hand.
Diagnostic Code 5224 provides that a 10 percent evaluation is
warranted when the ankylosis of the minor thumb is favorable,
and that a 20 percent evaluation is warranted when the
ankylosis of the minor thumb is unfavorable.
Diagnostic Code 5226 provides that a 10 percent rating is to
be assigned for favorable or unfavorable ankylosis of the
major and minor long finger.
Diagnostic Code 5227 provided a noncompensable rating for
ankylosis of the ring or little finger. The note following
that Code indicated that extremely unfavorable ankylosis of
the ring finger would be rated as amputation under Diagnostic
Code 5155. Effective August 26, 2002, the note that follows
Diagnostic Code 5227 states that it should also be considered
whether evaluation as amputation is warranted and whether an
additional evaluation is warranted for resulting limitation
of motion of other digits or interference with overall
function of the hand.
Under Diagnostic Code 5155, as in effect both before and
since August 26, 2002, amputation of the ring finger of
either hand with metacarpal resection (more than one-half of
the bone lost) warrants a 20 percent rating. Amputation
without metacarpal resection warrants a 10 percent rating.
Limitation of motion of the thumb: A 20 percent rating is
warranted-for the major or minor arm-with a gap of more than
two inches (5.1 cm.) between the thumb pad and the fingers,
with the thumb attempting to oppose the fingers. A 10
percent rating is warranted-for the major or minor arm-with a
gap of one to two inches (2.5 to 5.1 cm.) between the thumb
pad and the fingers, with the thumb attempting to oppose the
fingers. A noncompensable rating is warranted-for the major
or minor arm-with a gap of less than one inch (2.5 cm.)
between the thumb pad and the fingers, with the thumb
attempting to oppose the fingers. 38 C.F.R. § 4.71a,
Diagnostic Code 5228.
Limitation of motion of the index or long finger: A 10
percent rating is warranted-for the major or minor arm-with a
gap of one inch (2.5 cm.) or more between the fingertip and
the proximal transverse crease of the palm, with the finger
flexed to the extent possible, or; with extension limited by
more than 30 degrees. A noncompensable rating is warranted
for the major or minor arm with a gap of less than one inch
(2.5 cm.) between the fingertip and the proximal transverse
crease of the palm, with the finger flexed to the extent
possible, and; extension is limited by no more than 30
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229.
Limitation of motion of the ring and little finger: Any
limitation of motion warrants a noncompensable rating for
either the major or minor arm. 38 C.F.R. § 4.71a, Diagnostic
Code 5230.
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31.
Analysis. In the instant case, the Board finds that the
veteran does not meet or nearly approximate the criteria for
a compensable rating for his service-connected fractured
right thumb, right finger, and traumatic amputation to the
distal tip of the right middle finger.
In this, and in other cases, only independent medical
evidence may be considered to support Board findings. The
Board is not free to substitute its own judgment for that of
such an expert. See Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991). Here, nothing on file shows that the veteran has
the requisite knowledge, skill, experience, training, or
education to render a medical opinion. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his
contentions cannot constitute competent medical evidence.
38 C.F.R. § 3.159(a)(1).
Initially, the Board acknowledges that the medical evidence
clearly shows that the veteran's right ring finger is
manifested by pain, decreased strength, and limitation of
motion. However, Diagnostic Code 5230 provides that any type
of limitation of motion of the ring finger warrants nothing
more than a noncompensable rating.
The Board also finds that right ring finger is not manifested
by ankylosis. No such diagnosis is shown by the medical
evidence. Further, despite the fact that the finger is
manifested by pain, decreased strength, and limitation of
motion, the findings from both the July 2002 and June 2004 VA
medical examinations do not reflect that this impairment is
of such severity as to constitute immobility of this joint.
See Lewis, supra. Simply put, he still has mobility of the
right ring finger, as demonstrated by the range of motion
findings.
The Board also notes that the medical record does not reflect
that the right ring finger impairment is of such severity as
to be analogous to amputation. Accordingly, Diagnostic Code
5155 is not for consideration in the instant case.
The medical evidence reflects that neither the right thumb
nor middle finger is manifest by limitation of motion. On
the July 2002 VA examination, the only limitation of motion
noted regarding the right hand was for the ring finger.
Moreover, the June 2004 VA medical examination specifically
found that he had full range of motion of all fingers of the
right hand except for the ring finger. The Board
acknowledges that the veteran indicated he experiences pain
in his middle finger at the June 2005 hearing. However, even
assuming that both the middle finger and thumb were
manifested by pain, there is no objective evidence that it
results in limitation of motion necessary for a compensable
evaluation under either Diagnostic Code 5228 or 5229.
The Board further finds that neither the right thumb nor
middle finger is manifested by ankylosis. No competent
medical diagnosis of ankylosis is shown by the record, and
the fact that he had full range of motion of these joints on
the June 2004 VA medical examination is against a finding of
immobility. See Lewis, supra. Consequently, the veteran
does not meet or nearly approximate the criteria for a
compensable rating for either his right thumb or his right
middle finger on the basis of ankylosis. See 38 C.F.R.
§ 4.71a, Diagnostic Codes 5224 and 5226.
As none of the relevant joints have been found to be
manifested by ankylosis, neither Diagnostic Code 5222 nor
5223 for multiple finger ankylosis is for application in the
instant case.
With respect to the amputation of the right middle finger
itself, Diagnostic Code 5154 requires that the amputation be
at the PIP joint in order to qualify for the minimum
compensable evaluation of 10 percent. However, the medical
evidence reflects that the amputation was of the distal tip
of the finger, and the DIP joint is above the PIP joint in
the finger. See 38 C.F.R. § 4.71a, Plate III. Thus, he does
not meet or nearly approximate the criteria for a compensable
rating under this Code. Moreover, the medical evidence does
not reflect that more than one-half of the bone was lost as a
result of the amputation. Consequently, he is not entitled
to a 20 percent rating under this Code either.
The Board has also considered whether Diagnostic Code 5125,
for loss of use of the hand, is warranted in this case.
Under this Code, a 60 percent evaluation is warranted for
loss of use of the minor hand. However, even though the
veteran has decreased dexterity of the right hand, the July
2002 VA examination found that he was still able to test the
thumb and fingers without difficulty, and that he was able to
pull, push, and grasp without problem. Moreover, the June
2004 VA medical examination found that he was able to grasp
things with the thumb, index and middle fingers in the right
hand, and that he had full range of motion with all fingers,
except the ring finger. Based upon these findings, the Board
concludes that Diagnostic Code 5125 is not for application in
this case as the veteran does not have impairment of such
severity as to constitute loss of use of the right hand.
For the reasons stated above, the Board finds that, even when
taking into account the veteran's complaints of pain, he does
not meet or nearly approximate the criteria for a compensable
rating for his service-connected fractured right thumb, right
finger, and traumatic amputation to the distal tip of the
right middle finger. Thus, the Board concludes that the
preponderance of the evidence is against the claim, and it
must be denied. Since the preponderance of the evidence is
against the claim, the benefit of the doubt doctrine is not
for application. See generally Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir.
2001).
The Board notes that in adjudicating this claim, it was
cognizant of the potential applicability of "staged"
ratings pursuant to Fenderson, supra. However, a thorough
review of the competent medical evidence failed to indicate
any distinctive periods where the veteran met or nearly
approximated the criteria for a compensable rating under any
of the potentially applicable Diagnostic Codes.
As an additional matter, the Board notes that the July 2004
found the veteran to have a 3/4 inch laceration in the tuft of
the middle finger, and that the veteran provided testimony
regarding a right middle finger scar at the June 2005
hearing. However, he testified that the scar itself was not
painful, and there is no objective evidence of any impairment
attributable to this scar. Thus, the veteran does not show
that the veteran satisfies the criteria for a compensable
rating under any of the potentially applicable Diagnostic
Codes for evaluating scars found at 38 C.F.R. § 4.118.
Consequently, he is not entitled to a separate rating for
this scar. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet.
App. 259, 261 (1994).
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
Entitlement to a compensable rating for a fractured right
thumb, right finger, and traumatic amputation to the distal
tip of the right middle finger, is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs